Jack J. Kramer - Page 35

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            investigating tax fraud.  Helvering v. Mitchell, 303 U.S. 391,                                
            401 (1938); see also Zand v. Commissioner, T.C. Memo. 1996-19;                                
            Hobart v. Commissioner, T.C. Memo. 1995-517.  These policies                                  
            undergirding the additions for civil tax fraud obviate any                                    
            challenges based on theories of double jeopardy and excessive                                 
            fines arising from the forfeiture proceedings and petitioner's                                
            criminal trial, and the loss of liberty and fines stemming                                    
            therefrom.19                                                                                  


            19The Court of Appeals for the Fourth Circuit recently                                        
            reaffirmed the principle of Helvering v. Mitchell, 303 U.S. 391,                              
            401 (1938), that the civil tax fraud addition does not result in                              
            double jeopardy in the wake of more recent Supreme Court                                      
            decisions that seemingly called that principle into question.                                 
            Thomas v. Commissioner, 62 F.3d 97 (4th Cir. 1995), affg. T.C.                                
            Memo. 1994-128; see also McNichols v. Commissioner, 13 F.3d 432,                              
            434-435 (1st. Cir. 1993) (rejecting taxpayer's argument, citing                               
            "an insurmountable wall of cases" beginning with Helvering v.                                 
            Mitchell, supra, and then distinguishing civil forfeiture as                                  
            entirely distinct from civil tax liabilities), affg. T.C. Memo.                               
            1993-61; United States v. Alt, 83 F.3d 779, 782 (6th Cir. 1996)                               
            (quoting United States v. Halper, 490 U.S. 435, 446 (1989):  "the                             
            Government is entitled to rough remedial justice, that is, it may                             
            demand compensation according to somewhat imprecise formulas                                  
            * * * without being deemed to have imposed a second punishment                                
            for the purpose of double jeopardy analysis"); United States v.                               
            Brennick, 908 F. Supp. 1004, 1009 (D. Mass. 1995) (reaffirms the                              
            continuing vitality of Helvering v. Mitchell in the wake of                                   
            recent Supreme Court decisions in United States v. Halper, supra,                             
            Montana DOR v. Kurth Ranch, 511 U.S. 767 (1994), and Austin v.                                
            United States, 509 U.S. 602 (1993), noting that the Supreme Court                             
            approval of Mitchell in Halper and Kurth Ranch "strongly                                      
            indicates that the Court did not intend to overturn Helvering [v.                             
            Mitchell] sub silentio"); Ianniello v. Commissioner, 98 T.C. 165                              
            (1992).                                                                                       








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